Sierra Club v. Seaboard Farms, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

OCT 28 2004
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

SIERRA CLUB,

Plaintiff-Appellant,
v. No. 03-6104
SEABOARD FARMS INC. and
SEABOARD CORPORATION,
Delaware corporations, and
SHAWNEE FUNDING LIMITED
PARTNERSHIP, a Delaware
partnership,

Defendants-Appellees.

TYSON FOODS INC.,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CIV-00-997-C)

Barclay B. Rogers (Patrick Gallagher and David Bookbinder with him on the
briefs), Sierra Club, San Francisco, CA, for Appellant.

Ellen B. Steen (Richard E. Schwartz and Kirsten L. Nathanson with her on the
brief), Crowell & Moring LLP, Washington, DC, for Appellee.
Judith A. Villines, Stites & Harbison, PLLC, Frankfort, Kentucky, and Laura D.
Keller, James W. Taylor, and W. Blaine Early, Stites & Harbison, PLLC,
Lexington, Kentucky on the brief for Amicus Curiae.

Before HENRY , BRISCOE , and HARTZ , Circuit Judges.

HENRY, J. ,

Sierra Club, Inc. appeals from the district court’s grant of summary

judgment to the defendants, Seaboard Farms Inc., Seaboard Corporation, and

Shawnee Funding Limited Partnership (together, “Seaboard”), who own and

operate a pig-farming operation in western Oklahoma. This case turns on the

meaning of the word “facility” as used in the Comprehensive Environmental

Response, Compensation, and Liability Act’s section 103(a) (“CERCLA”), 42

U.S.C. § 9603(a).

CERCLA’s Section 103(a) sets out various reporting requirements for the

release of hazardous substances from a facility; here we focus on the ammonia

emissions from Appellee’s concentrated animal feeding operation located in

western Oklahoma. CERCLA’s statutory definition of this term is somewhat

turbid, but, when read with other provisions nearby, is unambiguous. The district

court found that the term “facility” should be narrowly construed so as to apply to

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each individual barn, lagoon, and land application area as an individual facility.

We are led to the contrary conclusion because another part of the statute’s text

provides a catch-all provision that encompasses Seaboard’s entire production site.

Therefore, we reverse the district court order and remand for further proceedings.

I. BACKGROUND

Defendant Seaboard Corporation, a publicly traded Delaware corporation,

wholly owns Seaboard Farms, Inc., an Oklahoma corporation, and, through two

single-member limited liability corporations, owns Shawnee Funding Limited

Partnership (collectively, “Seaboard”). Seaboard owns and operates the Dorman

Farm, in Beaver County in western Oklahoma, which comprises two farms located

on contiguous sections of land, Dorman North and Dorman South. Each farm

includes eight buildings and uses a common waste management system. Together,

Dorman North and Dorman South house approximately 25,000 swine. Each

building is separated by 40 to 100 feet.

At issue are the emissions from Dorman Farm’s waste management system,

which includes several lagoons, barns, and land application areas. Sierra Club

alleges that Seaboard knew of the Dorman Farm’s ammonia emissions and failed

to report them as required under CERCLA. Arguing that the ammonia emissions

from the Dorman Farm exceeded CERCLA’s “reportable quantity” (“RQ”) of one

hundred pounds per day, Sierra Club maintains that Seaboard had a duty to

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comply with § 103(a)’s immediate reporting requirements. See 40 C.F.R. § 302.4

(designating reportable quantities of hazardous substances).

In response, Seaboard argues that Sierra Club misconstrues the definition of

the word “facility.” Seaboard maintains that the Dorman Farm houses numerous

individual facilities, in each of the various lagoons, barns, and land application

areas. Under this theory, because each lagoon, barn, and land application area is

a separate facility, Seaboard is obligated to report under § 103 only if the

ammonia emissions for each individual facility exceed one hundred pounds per

day.

The district court initially agreed with Seaboard’s reasoning, based on an

EPA manual. The district court concluded that “facilities [we]re intended to be

separate buildings, structures . . . lagoons,” Aplt’s App. vol. II, doc. 16, at 8

(Dist. Ct. Order, filed Feb. 5, 2002), but it nevertheless concluded that Seaboard

was required to “aggregate the amount of ammonia being released at the Dorman

Sow Farm in order to determine if [it was] required to report the emissions under

CERCLA.” Id. at 10. In reviewing Seaboard’s motion to reconsider, the district

court reexamined the record, reversed its earlier ruling regarding aggregation,

and granted the reconsideration. In so doing, the court determined that Seaboard

“should not be required to aggregate amounts of ammonia release from separate

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facilities at Dorman which did not meet the RQ limit.” Id., doc. 23, at 4 (Dist. Ct.

Order, filed July 18, 2002).

Subsequent to this ruling, the parties entered into a Consent Decree that

addressed all of Sierra Club’s claims, with the exception that Sierra Club could

appeal the district court’s ruling on the question of Seaboard’s liability for failure

to report ammonia emissions under § 103(a) of CERCLA. In making this

determination, the primary issue before us is whether or not the district court’s

interpretation of the term “facility” is correct.

II. DISCUSSION

In interpreting § 103, we must first determine whether the plain language of

the statute is ambiguous. Suspecting that the EPA might have an opinion as to

what a “facility” means in § 103, we invited the agency to participate by

submitting a brief. It declined, because of insufficient time to work with the

Department of Justice and prepare a brief before scheduled oral argument; it

offered to consider our invitation post-argument. Because we hold the term to be

unambiguous, and we need not defer to the EPA’s interpretation, no further

assistance is necessary. Our holding is supported by the text of the statute, its

remedial purpose, and caselaw that has construed the term “facility” in other

contexts.

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 A. Standard of Review

“We review the grant or denial of summary judgment de novo, applying

the standard applied by the district court pursuant to Fed. R. Civ. P. 56(c).” Mesa

Oil, Inc. v. Ins. Co. of N. Am., 123 F.3d 1333, 1337 (10th Cir. 1997). Under that

standard, summary judgment is appropriate if the pleadings, depositions, answers

to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law. If the movant bears the burden of showing the

absence of a genuine issue of material fact, the non-movant may not rest on its

pleadings but must set forth specific facts showing a genuine issue for trial as to

those dispositive matters for which it carries the burden of proof. Id.

B. Section 103(a)

“[T]he starting point in every case involving construction of a statute is the

language itself.” Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330

(1978) (internal quotation marks omitted). Section 103 of CERCLA requires that

Any person in charge of a vessel or an offshore or an onshore facility
shall, as soon as he has knowledge of any release (other than a federally
permitted release) of a hazardous substance from such vessel or facility
in quantities equal to or greater than those determined pursuant to
section 9602 of this title, immediately notify the National Response
Center established under the Clean Water Act [33 U.S.C.A. § 1251 et
seq.] of such release. The National Response Center shall convey the
notification expeditiously to all appropriate Government agencies,
including the Governor of any affected State.

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42 U.S.C. § 9603(a) (emphasis supplied). Ammonia (NH 4) is a hazardous

substance under § 102 of CERCLA. See 40 C.F.R. § 302.4. The EPA-defined

reportable quantity for ammonia is one hundred pounds per day.

As to the term “facility,” we will not extrapolate a definition when one has

been provided in the text of the statute. CERCLA defines “facility” as

(A) any building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treatment works),
well, pit, pond, lagoon, impoundment, ditch, landfill, storage
container, motor vehicle, rolling stock, or aircraft, or (B) any site or
area where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any vessel.

42 U.S.C. §§ 9601(9) (emphasis supplied).

C. Is the Statute Unambiguous?

We must first determine whether the statutorily-defined term “facility” is

unambiguous. That is, we must decide, using the analytic framework set out in

Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984),

“whether Congress has directly spoken to the precise question at issue.”

Pharmanex v. Shalala, 221 F.3d 1151, 1154 (10th Cir. 2000) (internal quotation

marks omitted). “If so, that is the end of the matter, and Congress’ clear intent

controls. If the statute is silent or ambiguous as to the specific issue before us,

then we must defer to the agency’s interpretation, if it is based on a permissible

construction.” Id.

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 We agree with the district court that the definition appears clear, concise

and straightforward, delineating examples of facilities in subpart (A) (“ any

building, structure, installation, equipment, pipe or pipeline . . . well, pit, pond,

lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling

stock, or aircraft,” 42 U.S.C. § 9601(9)(A)). Thus, Seaboard argues that each

barn (or lagoon) is a separate facility, and unless the emissions from each barn

exceed one hundred pounds per day, no reporting is required. But we also

conclude that the statute provides a catch-all provision in subpart (B) (“any site or

area where a hazardous substance has been deposited, stored, disposed of, or

placed, or otherwise come to be located,” id. § 9601(9)(B)).

We note that the district court did not appear to address subpart (B) in its

orders. Although we agree with the district court that subpart (A) is clear, it must

be read with subpart (B), wherein we interpret the definition of “facility” to

dictate an unequivocal answer to the issue at hand. Applying the normal

principles of statutory construction, subpart (B) encompasses “any site or area

where a hazardous substance” has “come to be located.” Giving “effect to the

unambiguously expressed intent of Congress,” Chevron, 467 U.S. at 843, we must

hold that the entire contiguous Dorman site is thus included.

We acknowledge that the District Court for the Western District of

Kentucky reached the opposite conclusion than did the district court here, which

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might support a finding of ambiguity in the statute. See United States v. Quarrell,

310 F.3d 664, 669 (10th Cir. 2002) (“A statute is ambiguous when it is capable of

being understood by reasonably well-informed persons in two or more different

senses. If an ambiguity is found, a court may seek guidance from Congress’s

intent, a task aided by reviewing the legislative history. A court can also resolve

ambiguities by looking at the purpose behind the statute.”) (internal quotation

marks and citations omitted). In Sierra Club, Inc. v. Tyson Foods, Inc. , 299 F.

Supp. 2d 693 (W.D. Ky. 2003) (hereinafter Tyson ), the district court accepted

Sierra Club’s argument that the term “facility” included every poultry house or

litter shed at the farm, and that the “whole farm site is the proper regulated entity

for purposes of the CERCLA . . . reporting requirements.” Id. at 708. Although

the district court below reached a different conclusion, its reasoning was based

entirely on § 101(9)(A), and not on § 101(9)(B), which would include “any site or

area where a hazardous substance has been deposited.” § 101(9)(B). Thus, the

divergent views of the two courts does not change our conclusion that the term

“facility” is unambiguous.

D. Seaboard’s Arguments

Having concluded that the term facility is unambiguous and encompasses

the entire Dorman site, we turn to Seaboard’s counter-arguments that the term

“facility” should be construed narrowly. We consider (1) the text of the statute,

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(2) the purpose of the statute, the (3) federal courts’ interpretations of the

definition of the term “facility,” and (4) the EPA’s various interpretations that

touch upon the issue.

1. Statutory definition

Turning to the plain text of the statute, we find it telling that the

conjunction linking subparts (A) and (B) is “or,” thus providing two distinct

definitions of what might constitute a facility. “An area fulfilling the

requirements of part A need not also meet the requirements of part B to be

considered a ‘facility,’ and vice versa. Consequently, part B should not be read as

in any way modifying part A.” United States v. Township of Brighton , 153 F.3d

307, 322 (6th Cir. 1998) (Moore, J., concurring). Site is defined as “[t]he

situation or position of a place, town, building, etc., esp. with reference to the

surrounding district or locality.” XV T HE O XFORD E NGLISH D ICTIONARY 562 (2d

ed. 1989). “In addition, sites that do not otherwise satisfy the definition are swept

within its purview by a catch-all phrase that applies to ‘any site or area where a

hazardous substance . . . otherwise comes to be located.’” Uniroyal Chem. Co.,

Inc. v. Deltech Corp ., 160 F.3d 238, 245 (5th Cir. 1998) (quoting 42 U.S.C. §

9601(9)(B)).

We hold that the two-part disjunctive definition of “facility” means

whatever is appropriate for the facts at hand: not only “(A) any . . . pit, pond,

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lagoon, impoundment, [or] landfill . . . ,” but also “(B) any site or area where a

hazardous waste substance has been deposited . . . or placed, or otherwise come to

be located.” 42 U.S.C. § 9601(9). “Simply put, the term ‘facility’ includes every

place where hazardous substances come to be located.” United States v.

Conservation Chem. Co. , 619 F. Supp. 162, 185 (W.D. Mo. 1985).

This interpretation is supported by the only other federal court to directly

address this issue. See Tyson , 299 F. Supp. 2d at 708. The Tyson court

acknowledged the Western District of Oklahoma’s contrary findings, but

concluded

that a whole chicken farm site is a facility from which releases must be
reported under CERCLA. First, Defendants are correct that CERCLA
§ 101(9)(A), defines facility to mean “any building, structure,
installation, equipment,. . . .” 42 U.S.C. 9601(9)(A). But in relying on
this provision, they ignore CERCLA § 101(9)(B) which defines a facility
as “any site or area where a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise come to be located . . . .” 42
U.S.C. § 9601(9)(A). Under CERCLA § 101(9)(B), the entire farm site,
including all the chicken houses on a single site, qualifies as a facility.

Id. (emphasis supplied). We agree with the Tyson court that subsection §

101(9)(B) provides a catch-all alternative provision to capture sites that are not

specifically identified in subsection (A).

2. Remedial Purposes of CERCLA

CERCLA’s broad remedial purposes further support our holding. See

Uniroyal Chem Co., 160 F.3d at 257 (“Numerous courts . . . have recognized that

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CERCLA is a broad remedial statute.”) (collecting cases). “Congress enacted

CERCLA to facilitate the expeditious cleanup of environmental contamination

caused by hazardous waste releases.” Daigle v. Shell Oil Co. , 972 F.2d 1527,

1533 (10th Cir. 1992).

To facilitate its remedial goals, CERCLA “establishes several mechanisms

to respond to releases or threatened releases and delineates the respective powers

and rights of governmental entities and private parties.” Id. A primary step in

holding parties responsible for disposal problems is the notification process

provided in § 103. CERCLA provides the EPA with “a variety of tools for

achieving the efficient and cost-effective cleanup of the nation’s hazardous waste

sites.” United States v. Occidental Chem. Corp. , 200 F.3d 143, 147 (3d Cir.

1999).

We agree with Sierra Club’s assertion that CERCLA, which was enacted

“[i]n 1980 . . . in response to the serious environmental and health risks posed by

industrial pollution,” must be interpreted liberally so as to accomplish its remedial

goals. United States v. Bestfoods , 524 U.S. 51, 55 (1998); Atl. Richfield Co. v.

Am. Airlines, Inc. , 98 F.3d 564, 570 (10th Cir. 1996) (“We note that because

CERCLA is remedial legislation, it should be construed liberally to carry out its

purpose.”). The EPA states that “a major purpose” of § 103 is “to alert the

appropriate government officials to releases of hazardous substances that may

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require rapid response to protect public health and welfare and the environment.”

50 Fed. Reg. 13,456 (April 4, 1985) (final rule). Consistent with a liberal

construction to further CERCLA’s purposes, the Bestfoods Court affirmed that

“the term ‘facility’ enjoys a broad and detailed definition.” 524 U.S. at 56 (citing

§ 101(9) in an action brought under CERCLA § 107, 42 U.S.C. § 9607).

Seaboard argues that “[t]he statutory goal of immediate notification and

emergency response would not be served by a broad, site-wide interpretation of

the term ‘facility.’” Aple’s Br. at 18 (emphasis supplied). Seaboard emphasizes

that the definition of “facility” provided in another statute, the Emergency

Planning and Community Right-to-Know Act (EPCRA), requires a broad

interpretation. EPCRA defines “facility” as

all buildings, equipment, structures, and other stationary items which
are located on a single site or on contiguous or adjacent sites and which
are owned or operated by the same person (or by any person which
controls, is controlled by, or under common control with, such person).
For purposes of section 11004 of this title, the term includes motor
vehicles, rolling stock, and aircraft.

42 U.S.C. § 11049(4) (emphasis added).

EPCRA’s notification requirements “provide citizens with accurate

information [regarding] all releases of toxic chemicals at a site for informational

purposes.” Aple’s Br. at 27 (emphasis added). “EPCRA establishes a framework

of state, regional and local agencies designed to inform the public about the

presence of hazardous and toxic chemicals, and to provide for emergency

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response in the event of health-threatening releases.” Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 86 (1998). EPCRA’s hazardous substances include

more than two hundred EPCRA hazardous substances, including hydrogen

peroxide and sulfur dioxide, that are not CERCLA hazardous substances. 40

C.F.R. §§ 302.4, 355.

Seaboard maintains that, in contrast, CERCLA’s § 103(a) does not

contemplate widescale aggregated reporting, but rather it was designed to assure

immediate notification of RQs released from a discrete location. Seaboard

contends that by adopting a broader definition in EPCRA (covering “ all ”

buildings etc.), CERCLA’s narrower definition (“ any ” building) must be given

some meaning. Seaboard argues that, unlike § 103, CERCLA’s §§ 104 and 107

address the “cleanup management” and liability purposes that should be construed

broadly to “maximize site cleanup efficiency.” Aple’s Br. at 20. Rather, the

notification requirements under § 103 would be “best served by a focus on

discrete locations,” and thus “facility” for purposes of § 103 means each

individual barn, lagoon, etc. Id. at 28.

We find Seaboard’s arguments unconvincing. CERCLA contains no

language limiting § 103 or limiting § 101(9)’s definition of “facility” in such a

way. In fact, the EPA’s interpretation of violations of this section appear quite

strict. See In re Genicom Corp., 1992 WL 204414, at *4 (E.P.A. July 16, 1992)

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(where defendant failed to report releases from the storage tank of the wastewater

treatment plant facility, EPA’s assessment of penalties for violation of § 103’s

notification requirement was justified) , aff’d , In re Genicom Corp. , 4 E.A.D. 426

(E.P.A. Dec. 15, 1992).

3. The Federal Courts’ Treatment of “Facility”

Seaboard contends that the federal courts that have considered the breadth

of the term “facility” did not do so in the context of § 103, and thus, are not

instructive. We recognize that, with the exception of Tyson , none of these cases

that have explored the definition of “facility” were § 103 reporting requirements

cases. However, we agree with the Tyson court that we “can find no rational

reason to disregard these cases in discussing the definition of the term ‘facility’ in

a Section 103 reporting case.” 299 F. Supp. 2d at 709. First we consider (a)

various federal courts’ interpretations of “facility” under other sections of

CERCLA, and next, (b) the relevance of Congress’s use of the identical term

throughout the statute.

a. Other sections of CERCLA

Both sides agree that the circuits that have applied the defined term

“facility” have done so with a broad brush. See Uniroyal Chem. Co. , 160 F.3d at

245 (applying broad definition of facility in an action under § 107 and stating

“[i]n examining the contours of § 9601(9), it is apparent that facility is defined in

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the broadest possible terms , encompassing far more than traditional waste sites.

It expressly includes buildings, pipelines, motor vehicles, rolling stock, wells, and

aircraft. 42 U.S.C. § 9601(9)(A).”) (emphasis supplied); United States v. Rohm

and Haas Co. , 2 F.3d 1265, 1279 (3d Cir. 1993) (examining liability under § 107

and noting “we think it evident from the broad statutory definition of ‘facility’

that Congress did not intend EPA to be straight-jacketed in this manner in

situations involving a release transcending property boundaries”); 3550 Stevens

Creek Assocs. v. Barclays Bank of Cal. , 915 F.2d 1355, 1360 n.10 (9th Cir. 1990)

(determining liability under § 107 and noting broad construction of the term

“facility,” “such that in order to show that an area is a ‘facility,’ the plaintiff need

only show that a hazardous substance under CERCLA is placed there or has

otherwise come to be located there”) (internal citations omitted); New York v.

Shore Realty Corp ., 759 F.2d 1032, 1043 n.15 (2d Cir. 1985) (“CERCLA defines

the term ‘facility’ broadly to include any property at which hazardous substances

have come to be located”); see also Quaker State Minit-Lube, Inc. v. Fireman's

Fund Ins. Co., 52 F.3d 1522, 1525 (10th Cir. 1995) (In a § 9607 action, “[t]he

EPA designated the Ekotek Site [consisting of three surface impoundments, piles

and pits of waste material, underground tanks, and an underground drain field] a

CERCLA facility pursuant to 42 U.S.C. § 9601(9) because of contamination by

hazardous substances.”) (emphasis supplied).

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 In a § 107 action, the Fourth Circuit noted that simply because “a property

could be divided [into multiple facilities] does not, however, mean that it must be

so divided for CERCLA purposes.” Axel Johnson, Inc. v. Carroll Cardina Oil

Co. , 191 F.3d 409, 418 (4th Cir. 1999). There, the hazardous substances were not

located only in the storage tanks and their associated spill areas; rather, they were

located throughout the property. The court, after noting the “untenability of the

contention that anything that could be designated as a separate facility must be so

designated,” applied the broad definition of facility, and noted that “[n]o court

has held . . . that any area that could qualify as a facility under the definition must

be considered a separate facility.” Id. at 417-18 (emphasis supplied); see also

Tyson , 299 F. Supp. 2d at 709 (treating a plant or “an area [that] is managed as a

whole . . . [as] a single facility for CERCLA purposes”).

We recognize that in a § 107 action, the hazardous substances may have

contaminated large parts of a plant, while initially being emitted from only one

tank. See Axel Johnson , 191 F.3d at 417. However, the underlying purpose of §

103, that is, the alerting of government officials of a potential hazardous

substance release that may require federal and local government response

assistance, is best served through treating the Dorman Farm as a single facility.

Solely owned by Seaboard, it is managed and operated as one facility, with one

particular site purpose (producing swine products). See also Akzo Coatings, Inc.

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v. Aigner Corp. , 960 F. Supp. 1354, 1359 (N.D. Ind. 1996) (rejecting the

argument that each contamination source is a separate facility because such

argument “could have disastrous consequences, for ultimately every separate

instance of contamination, down to each separate barrel of hazardous waste, could

feasibly be construed to constitute a separate CERCLA facility”), aff’d in part,

vacated in part by , 197 F.3d 302 (7th Cir. 1999); Quaker State Minit-Lube, 52

F.3d at 1525 (10th Cir. 1995) (entire site, which consisted of surface

impoundments, piles and pits of waste material, underground tanks, and an

underground drain field considered a facility for § 9607); Cytec Indus. v. B.F.

Goodrich Co. , 232 F. Supp. 2d 821, 836 (S.D. Ohio 2002) (“This court concludes

that usually, although perhaps not always, the definition of facility will be the

entire site or area, including single or contiguous properties, where hazardous

wastes have been deposited as part of the same operation or management.”);

Clear Lake Props. v. Rockwell Int’l Corp. , 959 F. Supp. 763, 767-68 (S.D. Tex.

1997) (rejecting an attempt to create unnatural boundaries between a building and

the site on which it is located).

b. Identical words used in different parts of CERCLA

Little caselaw addresses the emergency notification purposes of § 103.

Despite this dearth of caselaw, Seaboard can point to no evidence that Congress

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intended for the statutorily defined term “facility” to assume a different meaning

when used in different sections of CERCLA.

The Supreme Court has recognized that it is a “normal rule of statutory

construction . . . that identical words used in different parts of the same act are

intended to have the same meaning.” Sorenson v. Sec’y of the Treasury , 475 U.S.

851, 860 (1986) (internal quotation marks omitted). When Congress uses a

technical term in a statute, it is presumed that it has intended that the term have

the same meaning in each of the sections or subsections. See Gustafson v. Alloyd

Co. , 513 U.S. 561, 576 (1995) (concluding that the term “prospectus” had the

same meaning under two different sections of the Securities Act of 1933).

Furthermore, we recognize that this “‘normal rule of statutory construction’

applies with particular force where Congress has specifically defined the term,” as

here. SKF USA Inc. v. United States , 263 F.3d 1369, 1381 (Fed. Cir. 2001). See

Sorenson , 475 U.S. at 851 (rejecting a taxpayer’s argument that the definition of

the term “overpayment” in one section of the Internal Revenue Code did not apply

to the use of the term in a separate but related code section); see also, e.g., Estate

of Cowart v. Nicklos Drilling Co. , 505 U.S. 469, 479 (1992) (noting the “basic

canon of statutory construction that identical terms within an Act bear the same

meaning”); Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (reaffirming the

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presumption that “identical words used in different parts of the same act are

intended to have the same meaning”).

As the Tyson court notes, “CERCLA defines ‘facility’ once in the definition

section of the statute and its meaning should be interpreted consistently

throughout the entire statute. Accordingly, ‘facility’ for reporting purposes,

cleanup purposes or any other statutory purpose extend [sic] to the bounds of the

contamination.” Tyson , 299 F. Supp. 2d at 299. “We therefore presume that

Congress intended that the term have the same meaning in each of the pertinent

sections or subsections of the statute . . . .” SKF USA , Inc. , 263 F.3d at 1382.

4. EPA’s Interpretations of Facility

Both sides refer to various EPA “interpretations” of § 103 for support. The

EPA has touched on this section in various places, including (a) an EPA

publication titled “EPA Reporting Requirements for Continuous Releases of

Hazardous Substances, A Guide for Facilities on Compliance, 1997”; (b) the

preamble to the proposed and final rule, regarding notification requirements; (c)

the final rule regarding continuous releases; and (d) various comments and

responses to the notification requirements rulemaking procedure. To the extent

these regulatory materials do address the term “facility,” generally, the EPA’s

interpretation appears to cut both ways. See Tyson, 299 F. Supp. 2d at 710

(noting that “both parties cite EPA regulations and guides in support of their

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respective positions . . . and find[ing] arguable support for both of their

positions”). Because we have interpreted § 101(9) to be unambiguous, we need

not consider the EPA’s ruminations. We owe the EPA’s interpretations no

deference under Chevron. See Nat’l R.R. Passenger Corp. v. Boston and Maine

Corp., 503 U.S. 407, 415 (1992) (concluding that statute “is unambiguous in

light of its language and history, and so no deference was due” under Chevron).

III. CONCLUSION

We hold that the plain language of CERCLA’s § 101(9)(A) and (B) is

unambiguous and unequivocal. Given this clear expression of Congress’s intent,

§ 103’s use of the term “facility” encompasses the Dorman site as a whole. The

disjunctive language of § 101(9), CERCLA’s remedial purpose, and the federal

courts’ broad interpretation and application of § 101(9) further bolster a

definition of a “facility” that encompasses the entire Dorman Farm site.

Accordingly, we REVERSE and REMAND to the district court for proceedings

consistent with this opinion. The motion of Tyson Foods, Inc. for leave to file an

amicus brief is granted.

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03-6104 - Sierra Club v. Seaboard

HARTZ , Circuit Judge, concurring in part and dissenting in part:

I concur in reversal and remanding to the district court, but I do not join the

panel opinion. Although there is much with which I agree in that opinion, I read

the controlling statutory provision—CERCLA § 101(9), 42 U.S.C. § 9601

(9)—differently than does the majority. In my view, whether the Dorman Farm

constitutes a “facility” depends on whether a “hazardous substance,” within the

definition of the term in CERCLA § 101(14), 42U.S.C. § 9601(14), has been

deposited on the farm. Perhaps the hog waste is a “hazardous substance”; or

perhaps ammonia within the waste fits the definition. But this issue has not been

briefed or argued by the parties and should be addressed on remand.

Seaboard allegedly violated CERCLA § 103, 42 U.S.C. § 9603. That

section requires “[a]ny person in charge of a . . . facility” to report promptly “any

release . . . of a hazardous substance from [the] facility” in quantities above

certain established levels. Id. “Facility” is defined as follows by CERCLA

§ 101(9):

The term “facility” means (A) any building, structure,
installation, equipment, pipe or pipeline (including any pipe into a
sewer or publicly owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area where a hazardous
substance has been deposited, stored, disposed of, or placed, or
otherwise come to be located; but does not include any consumer
product in consumer use or any vessel.
 At first glance, part (B) of the definition appears to subsume part (A)—any

facility described in part (A), such as a building or a lagoon, is on a “site” or

“area” and thus is encompassed by part (B) of the definition. But there is a

qualifier in part (B) that does not apply to part (A). To qualify as a “facility”

under part (B) of the definition, the site or area must be a place “where a

hazardous substance has been deposited, stored, disposed of, or placed, or

otherwise come to be located.” Thus, a building, say a coal-fired power plant,

could be covered by part (A) but not by part (B) if hazardous waste is not located

in the plant. The hazardous waste might be produced by burning the coal and is

then emitted into the atmosphere. Perhaps one could say that such waste “has . . .

come to be located” in the power plant because it resides (briefly) in the

smokestack before being emitted; but that would strike me as a stretch of the

statutory phrase. In common usage we would not say that an item has been placed

or come to be located in a conduit that it passes through in an instant. Moreover,

if “placed, or otherwise come to be located” is interpreted to include such a

transient passage, one wonders what the purpose of part (A) is; whenever a

hazardous substance is released from an item (other than a vehicle) listed in part

(A), that item would be on a site that satisfies part (B).

If my reading of § 101(a) is correct, then the result in this case depends on

whether the animal waste (or ammonia within it) at Dorman Farm is a “hazardous

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substance.” If it is not a hazardous substance, then only part (A) of the definition

of “facility” applies. And I see no way to interpret any of the components of the

part (A) definition to encompass the entire farm. Those components are discrete

objects—a building, a pipe, a pond, etc. No liberal definition of the word

“building” could reasonably include a group of dispersed buildings.

On the other hand, if the animal waste is a “hazardous substance,” part (B)

of the definition of “facility” applies, and it would be appropriate to treat the

entire farm as a “site” or “area.” The opinions relied on by the panel opinion in

support of an expansive interpretation of the definition of “facility” all relate to

part (B) of the definition.

My reading of § 101(9) is also consistent with an EPA statement relied on

by Seaboard. The statement relates to reporting requirements under CERCLA

§ 103. A person in charge of a facility must report any known release of a

reportable quantity (RQ) of a hazardous substance from the facility. Releases are

aggregated over a 24-hour period to determine whether they reach the RQ. In an

introductory statement accompanying its final rule on “Notification Requirements:

Reportable Quantity Adjustments,” 50 Fed. Reg. 13456 (April 4, 1985), the EPA

explained that if a plant contains several “facilities,” the plant can prepare one

report of RQ releases from the entire plant, but whether there has been an RQ

release is determined on a facility-by-facility basis. In other words, even if the

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release by the entire plant exceeds the RQ, there is no reporting requirement if

there was not an RQ release by any single facility. If, however, several facilities

at the plant each experienced an RQ release, the plant may submit a single report

covering all the releases.

The EPA wrote:

Several commenters discussed the Agency's statement that “for
notification purposes, EPA will consider the entire contiguous plant
or installation and contiguous grounds under common ownership to
be the reporting facility rather than each vent, pipe, or piece of
equipment at such a plant” (48 FR 23553). Some of the commenters
appeared to misinterpret EPA's intentions.

The Agency intended the statement to reflect its belief that numerous
concurrent releases (releases occurring within the same 24-hour
period) of the same hazardous substance from one contiguous plant
or installation need not be reported individually, but should be
reported in a single notification. This policy will avoid unnecessary
and burdensome calls where a plant is experiencing more than one
reportable release, because it allows the regulated community to
consider multiple concurrent releases of the same substance as one
release for reporting purposes.

The comments received favored this policy, although a few
commenters suggested that EPA expand the definition of facility to
include outdoor areas within the boundary of a plant. In addition,
some commenters questioned whether a releaser must aggregate the
total volume of concurrent releases in order to determine if a
reportable quantity has been met or exceeded.

The “facility” from which a release has entered or may enter into the
environment does not include outdoor areas. Rather, the definition
of “environment” includes all outdoor (i.e., not completely enclosed)
areas surrounding and within a given facility. All concurrent
releases of the same substance from a particular facility into the
environment must be aggregated to determine if an RQ has been

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 exceeded. Releases from separate facilities, however, need not be
aggregated. EPA intends for multiple concurrent releases of the
same substance from a single facility to be reported in a single
notification as a single release. Where multiple concurrent RQ
releases are occurring at various parts of a contiguous plant or
installation on contiguous grounds under common ownership (e.g., at
a chemical manufacturing plant or an oil refinery), the person in
charge should also report these multiple concurrent releases in a
single notification. The policy of consolidating notifications also
applies to concurrent releases from separate storage facilities, so
long as the releases are at the same location, i.e., located on
contiguous grounds under common ownership.

Id. at 13459 (emphasis added). Although this statement is not as clear as one

would like, it certainly assumes that a single plant or installation (such as a

“chemical manufacturing plant or an oil refinery”) might not itself be a “facility”

even though it includes several “facilities.” See also “Clarification of

Notification CERCLA Requirements for Facilities” in Emergency Preparedness

and Community Right-to-Know Act - Questions and Answers (Feb. 1999), at

http://yosemite.epa.gov/oswer/ceppoweb.nsf/vwResourcesByFilename/epcra-

qa.txt/$File/epcra-qa.txt (stating that releases from two facilities “on contiguous

ground under common ownership” should not be aggregated to determine whether

RQ has been reached). This makes sense if only part A of the definition of

“facility” applies—part (B) (which could well encompass a “site” including the

entire plant) being inapplicable because the “hazardous substance” emitted by the

plant is not considered to “ha[ve] been deposited, stored, disposed of, or placed,

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or otherwise come to be located” there even though it travels through a

smokestack or the like.

Having said all this, I add a note of caution. CERCLA is notorious as a

complex, poorly crafted statute. What appears to be a straightforward reading of

statutory language may fail to take into account important features of the statute.

An amicus brief from the EPA would have been helpful.

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